Using 'Free Speech' to Trump Civil Rights

Conservatives are attempting to use the First Amendment not as an instrument of freedom and self-government but as a corporate privilege.

A wedding cake with two figures holding hands
Mario Anzuoni / Reuters

In “Chicken Heart,” the most famous episode of Arch Oboler’s 1930s radio series, “Lights Out,” scientists in Chicago keep a chicken’s heart alive indefinitely—but when a careless lab visitor breaks open the heart’s container, the heart begins to spread … and spread … and spread.

“For some reason I cannot even imagine, this tissue is doubling in size every hour,” one savant tells the authorities. “Do you know what that means? In another hour it will be twice the size it is now, and long before that it will break open the building with the force of its pressure. And then it will be free in the streets—do you hear me, free in the streets! And then those tentacles of protoplasm stretching out to feed on anything they can reach …”

As of this writing, Chicago has not been eaten. But in the last few years, the First Amendment has become a kind of constitutional chicken heart, spreading its tentacles into new areas, growing and growing until it crowds out other areas of the law.

In First Amendment matters, I am not chicken livered—man and boy, as editor and scholar, I have been arguing for free speech, free press, and free exercise for nearly 50 years. But the current Supreme Court has taken to rechristening entire areas of the law as First Amendment territory. The new “First Amendment” is zigzagging through the streets of the law in unpredictable fashion. For example, it protects corporate management’s political use of shareholder funds, without regard to the shareholders’ wishes—even though it will likely soon forbid unions’ use of workers’ fees to support actual collective bargaining. It is destroying any limit, no matter how modest, on concentrated wealth in politics. It now empowers drug salespeople to demand practice information on doctors who’d prefer to keep it private; it limits modest state regulations on the posting of correct retail prices.

Not long ago, a panel of the D.C. Circuit held that cigarette companies had a First Amendment right to refuse to print warning labels on their packs (mercifully reversed by the full appeals court). After the city of Seattle raised its minimum wage, a business group sued, claiming that paying higher wages would leave them less money to spend on advertising, and thus supposedly violate their First Amendment rights. That argument has failed—so far, but it makes about as much sense as some that the Supreme Court has accepted.

More and more government regulations are being devoured by the category of “content-based regulation of speech”—and that that designation will trump any doctrine from any other area of law that might heretofore have applied.

These reflections were sparked by an amicus brief in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the case of the gay wedding cake, which will be heard by the Supreme Court on December 5. The cake shop, and the baker who is a major shareholder, assert that his religious beliefs should allow him to refuse service—in violation of a state civil-rights statute—to a same-sex couple seeking a custom wedding cake.

Readers might be forgiven for thinking that this is the same issue that the court decided three years ago in Hobby Lobby Stores v. Burwell, in which a large for-profit corporation asserted, and partially won, a religious right to defy federal regulations and refuse health-care coverage for contraceptive methods.

But there are important differences. First, Hobby Lobby involved a claim under the Religious Freedom Restoration Act, meaning that a future Congress that disagrees with the result could amend the act to reimpose the requirement—while the cake shop wants the court to write an exemption into the Constitution, where it will be untouchable; secondly, Masterpiece Cakeshop involves a claim for exemption not from an employee-benefit regulation but from a civil-rights statute aimed at protecting the rights of the general public; and, third and perhaps most ominously, lawyers for the cake shop are aiming at carving a much bigger hole in government protection of individual rights.

Though they frequently speak of baker Jack Phillips’s personal religious faith, the claim they are advancing is much broader. The cake shop—and Jeff Sessions’s Justice Department—are asking the court to find an exemption from civil-rights statutes as a matter of freedom of speech, not “the free exercise” of religion. If their plea succeeds, anyone who objects to a government equality mandate may be able to claim that serving customers to whom they object is “compelled speech.” That right of exemption—however broad it may become—would extend not just to conscientious individuals but to for-profit corporations.

It is the latter concern that has spurred a group of 34 corporate-law scholars to file an amicus brief warning the court that a free-speech victory for the cake shop has the potential to create serious problems in the area of corporate law. The signatories are mostly, but not all, centrists or progressives—but all study corporate law and governance for a living.

The brief points out that Jack Phillips and Masterpiece Cakeshop are not one and the same. In fact, the cake shop is a for-profit Colorado corporation; though Phillips is the major stockholder, he is legally an employee of the corporation. Neither his religious beliefs, nor his person free-speech rights, should be attributed to that corporation, they argue. “Even in situations in which a single shareholder is dominant, the separation of shareholder from corporation is fundamental,” they write. “Shareholders receive immense benefits in exchange for this separation”—most prominently “limited liability,” meaning that corporate debts can’t be collected from the shareholders themselves, even if the company goes bankrupt. (The “Ltd.” in Masterpiece’s corporate name lets creditors know they can’t collect from Jack Phillips.)

Remember the cake shop is asserting a free-speech right—meaning that any corporation of any size can claim a similar exemption for any reason at all. If obeying civil-rights laws in the provision of a cake constitutes “compelled speech,” then conceptually any corporation can claim similar exemptions from serving any unpopular group they claim to dislike. The only limit on that right is the idea that it covers “expressive activities”—of which baking a cake with a custom inscription is, the cake shop argues, an example. This is supposedly a limited claim; but I can’t for the life of me see how it differs from a claim by a hotel that it should not be required to host public events for, let’s say, interracial or inter-religious marriage, or meetings that permit men and women to mix openly, or almost any other public event that someone might object to. (The Sessions Justice Department assures us that laws against race discrimination—like the Civil Rights Act of 1964—“may survive heightened First Amendment scrutiny.” “May.” It is strangely silent about discrimination by sex. God help us.)

The scholars urge the Court to reserve free-speech/religion claims for situations where “such beliefs [are] organic to the company”—as, for example, a religious publisher or charitable institution—“nor merely projections of dominant shareholders, and not asserted as pretext to gain economic advantage.” Not only will a victory for the free-speech claim open the way for such anti-regulatory claims, the scholars argue, it will make them, when advantageous, all but inevitable:

As a general matter, a corporation will enjoy a competitive advantage in the marketplace if it is exempted from otherwise generally applicable laws and regulations. In this case, Masterpiece Cakeshop is asking to be relieved from a state law its competitors are required to obey. Companies that do not assert constitutionally protected beliefs will find themselves competing at a disadvantage on grounds that have nothing to do with efficiency.

In short, the First Amendment may take another huge step away from being a protection of genuine speech rights and toward being a tool against government regulation. The scholars further warn that it may throw the law of corporate governance into chaos, resulting in “years of proxy fights followed by litigation” over shareholder rights and corporate duties. (I reached out to Alliance Defending Freedom, the conservative law firm representing Phillips, for a response, but was unable, over a week, to arrange an interview.)

Most people on both sides feel sympathy for Jack Phillips (though reciprocal sympathy for Charlie Craig and David Mullins, the engaged couple who were told that a baker did not recognize their marriage as legitimate, seems not as general on the conservative side). But law is not a congeniality or even sincerity contest; it is a process of framing rules that will be applied both to the conscientious and to Oliver Wendell Holmes Jr.’s famous “bad man,” who cares nothing for morality or sincerity but seeks only to avoid penalty and expense.

The First Amendment, Holmes said on another occasion, is designed to create a marketplace of ideas; but increasingly, “free speech” is sending tentacles into the actual marketplace, not as an instrument of freedom and self-government but as a corporate privilege. The result will, in the end, dilute and reduce the proper purpose of the Amendment—to preserve Americans’ right to genuine free expression and an open society.